Skeele Coal Co. v. Baker — 152 N.Y.S. 325

Majority

p. 325

SKEELE COAL CO. v. BAKER.

(No. 7009.)

(Supreme Court, Appellate Division, First Department.

March 26, 1915.)

Headnote

Pleading <@=>238—Amendment—Okdeb—Resettlement—Time to Apply.

Alter an amended complaint had been served pursuant to an order granting leave, and an answer thereto and reply, the case, when it appeared on the day calendar for trial, was stricken from the calendar on the ground that no notice of trial had been served or note of issue filed since the creation of the new issues. Held, that it was then too late to resettle the order granting leave to amend, by providing that the notice of trial and note of issue already served and filed should stand for the new issue Joined.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 602, 620-625; Dec. Dig. <§=238.]

Appeal from Special Term, New York County.

Action by the Skeele Coal Company against Charles T. Baker. From an order resettling an order allowing an amended complaint to be served, defendant appeals. Order reversed.

See, also, 164 App. Div. 933 , 149 N. Y. Supp. 1111 .

Argued before INGRAHAM, P. J., and McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

Manning Stires, of New York City (William J. Dawley, of New York City, of counsel), for appellant.

Nicholas W. Hacker, of New York City (William L. Bowman, of New York City, of counsel), for respondent.

On November 24, 1914, an order was made by the Special Term granting a motion for leave to serve an amended complaint upon payment of costs, the complaint to be served within 5 days, the defendant to have 20 days to answer or otherwise act. The amended complaint was duly served November 26th, the answer and counterclaim received December 15th, and the reply duly served on December 21st.

When the case appeared for trial upon the calendar, the defendant moved to strike the same from the calendar, upon the ground that no note of issue or notice of trial had been filed or served after the creation of the new issues; no reservation having been made in the order permitting the said amendment directing that the said case retain its place upon the calendar. This motion was granted by an order of the Trial Term dated January 5, 1915. Thereafter, on February 4, 1915, the Special Term made an order purporting to resettle the order of November 24, 1914, allowing the service of the amended complaint by adding thereto: “The original notices of trial of both parties and note of issue to stand as and for the new issue j'oined.” From this order the defendant appeals.

We think that, as all of the proceedings contemplated and authorized by the original order of November 24, 1914, had been taken, and thereafter the case-had been duly stricken from the calendar, it was too late,

p. 326

in effect, to make a new order in the guise of a resettled order containing provisions not requested upon the original motion.

The order appealed from should therefore be reversed, with $10 costs and disbursements, and the motion, denied, with $10 costs. Order filed.